Experts: Secretary of State for years registered non-citizens to vote

Voting rights experts say that the Secretary of State’s Office has allowed non-citizens to register to vote for many years and that Secretary of State Ruth Johnson has tried to gloss over past mistakes by presenting a citizenship check-box at the polls.

While a federal judge has issued an injunction blocking the boxes while he determines whether citizenship provisions on the voter forms at polling places is unconstitutional, voting rights advocates claim that non-citizens were routinely encouraged to register to vote by staff at branch offices of the Secretary of State who were confused about the law.

“I’ve had many (non-citizen) clients who have told me that they were reassured by their local Secretary of State’s Office that, ‘Oh, if you’re legally here or have a (U.S. Immigration Service) green card, you’re OK to be registered (to vote),” said Susan E. Reed, supervising attorney with the Kalamazoo-based Michigan Immigrant Rights Center. “To me … this is about her (Johnson) getting her house in order.”

Immigration attorneys say that they frequently represent non-citizen clients who – when they were applying for or renewing their driver license -- were in appropriately told by Secretary of State staff that they could register to vote. Now, those clients fear that their lengthy pursuit of legal citizenship could be ruined. In addition, those who have cast ballots could face a criminal felony charge or deportation.

Reed said the problems arose in 2008 when then-attorney general Mike Cox issued an AG opinion that said those seeking a driver license or renewal must present paperwork that shows they are a “permanent” resident of Michigan. That wording caused problems for non-citizens ranging from Detroit Red Wings hockey players to top General Motors executives. As a result, the state Legislature passed a law clarifying that those seeking driving privileges must present documentation showing that they have legal “presence” status.

Johnson has said that she believes there are up to 4,000 non-citizens on the registration rolls and they should be warned before the November election that they will be committing a felony if they cast a ballot.

When the controversy was turned up several notches last month, largely by city, township and county clerks, Gisgie Gendreau, spokesperson for Johnson, defended how the department handled the issue.

“One thing I can tell you is that the secretary is committed to secure and fair elections,” Gendreau said. “We know that until 2008, the feds required us to ask customers -- both citizens and noncitizens -- whether they wanted to register to vote. We know that people who were not qualified registered to vote. We also know that citizenship is a requirement to vote under state and federal law.”

Johnson went further, extending the matter over a 3-decade timeline without explanation:” “The whole reason we have non-U.S. citizens on our rolls in the first place is because for more than 30 years the feds required us to ask every customer if they wanted to register to vote, regardless of citizenship.”

Critics say that, after the 2008 Attorney General’s opinion and new state law, inadequately trained branch office workers routinely failed to understand the difference between a legal resident and so-called “legal citizen.”

Bob Kengle, a longtime voting rights expert, said that it’s been known for years that non-citizens

in Michigan and other states have been improperly registered to vote by Secretary of State branch offices. Kengle, an attorney who served in the Voting Section of the Justice Department from 1984-2005, said it appears that Johnson and her staff are muddling the facts.

The so-called federal “Motor Voter” law of 1993, which mirrored a longtime practice in Michigan of registering voters when they apply for a new or renewed driver license, required Secretary of State and Department of Motor Vehicles offices in each state to ask driver license applicants if they wanted to register to vote.

“But the NVRA (National Voter Registration Act) -- no way, no how -- said that a person has to be registered to vote no matter what they say on their (voter) application,” said Kengle, co-director of the Voting Rights Project and a member of the Washington-based Lawyers’ Committee for Civil Rights Under Law.

Macomb County Clerk Carmella Sabaugh has aggressively fought against the citizenship checkoff because, she said, her staff has found several instances in Macomb County when non-citizens were “forced” to become a registered voter by Secretary of State workers even when they indicated they were a non-citizen and declined to sign the registration form.

Johnson has produced 80 examples of Macomb voters who are not citizens but were nonetheless included in the Secretary of State’s computer database of registered voters. Her staff has said that many of these people were inadvertently added to the voter rolls or mistakenly concluded that they were eligible to vote, often because of language barriers.

Sabaugh and many other clerks have argued that it’s Johnson’s job to clean up the voter rolls. At the same time, they doubt that non-citizens who were placed on the rolls are taking the huge risk involved with illegal voting.

In a sarcastically worded letter to Johnson, Sabaugh said that the 80 non-citizens, even if they in fact take part in the voting process, are a tiny, insignificant portion of the Macomb electorate.

“Thanks you for the very tedious work your staff did to find 80 out 612,734 registered voters in Macomb County who you said may be non-citizens. According to the National Weather Service, this is about the same odds as getting struck by lightning in one’s lifetime,” the county clerk wrote.

In the past, Sabaugh, a Warren Democrat, has often allied herself with Johnson, a Holly Republican and the former Oakland County clerk.

Confusion reigned on the Aug. 7 primary Election Day as local clerks were given conflicting information regarding whether it was mandatory for voters to check the box.

In advance of the Nov. 6 general election, Johnson has advised clerks to allow those who refuse to check the box to cast a ballot, but to first warn them that voting as a non-citizen is a felony crime.

A coalition of voting rights activists, unions and local clerks successfully argued before U.S. District Court Judge Paul Borman in Detroit on Friday that the checkoff boxes should be excluded in November from the traditional voting forms that require a birthdate, address and signature. The court may still rule on a permanent ban.

Reed is not taking part in the court case but she is hoping the plaintiffs prevail so that delays will never occur at the polls and no legitimate voters will be intimidated.

“The biggest problem, absolutely, is erroneous advice,” the attorney said. “It … is disappointing to see the Secretary of State burden all voters when the problem is internal.”